Section 377: Govt leaves decision to 'wisdom' of SC

New Delhi: The hearing on scrapping Section 377 that prescribes a life term in jail for gay sex will continue in the Supreme Court on Wednesday.

The Centre told the court that it would not contest criminalisation of same-sex relations, adding that it leaves the decision to the 'wisdom of court'.

On Tuesday, a five-judge Constitutional bench headed by Chief Justice Dipak Misra stated that it will examine the correctness of its 2013 verdict that had set aside a Delhi HC order that had decriminalised gay sex.

The Supreme Court on Tuesday ruled out expanding the scope of the challenge to validity of the Indian Penal Code's Section 377, which criminalizes homosexuality, to include the right to marriage, co-habitation and adoption of people belonging to LGBT groups.

Saying that it will only confine the hearing to the constitutional validity of Section 377, the five judge constitution bench of Chief Justice Dipak Misra, Justice Rohinton Fali Nariman, Justice A.M. Khanwilkar, Justice D.Y.Chandrachud and Justice Indu Malhotra said that they will not wade into the issue which has not so far arisen.

Attorney General KK Venugopal said on Tuesday that he is not appearing in connection with the case pertaining to the hearing of Section 377. He said:

Telling senior counsel Mukul Rohatgi that "let us for now limit to the vires of Section 377 IPC", Chief Justice Misra said that the question was whether Section 377 is ultra vires or not.

"Let us get out of this maze," he added.

Ruling out expanding the scope of the hearing, he said that all the issues rooted in the rights of the LGBT community like marriage, co-habitation, adoption and inheritance "can be debated when the issue comes before us. Let there be no advance ruling".

The court said this as Rohatgi, appearing for the hotelier Kesav Suri, told the bench that their challenge to the vires of Section 377 IPC was one aspect and they were also seeking protection of their rights under Article 21 guaranteeing life and liberty.

However, this was opposed by Additional Solicitor General Tushar Mehta, appearing for the Central government, who said: "Let us confine to challenge to Section 377."

He said that if the scope of the hearing had be broadened, then the government must be given opportunity to respond to the petition being argued by Rohatgi.

However, this issue saw difference of perceptions within the judges, as Justice Chandrachud said that the declaration by the constitution bench should not be limited to testing the validity of Section 377.

As Mehta insisted that the hearing should be limited to Section 377, Justice Chandrachud observed: "This is a constitution bench."

However, Justice Nariman, along with the CJI, said they should first decide on the constitutionality of Section 377 and then decide on the individual rights that would follow as a consequence.